Braun v. State

• Decision Date: 07 August 1995
• Docket Number: No. C-93-993,C-93-993
• Citation: 1995 OK CR 42,909 P.2d 783
• Parties: Gregg Francis BRAUN, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 783

909 P.2d 783

Gregg Francis BRAUN, Petitioner, v. The STATE of Oklahoma, Respondent.

No. C-93-993.

Court of Criminal Appeals of Oklahoma.

Aug. 7, 1995.

Rehearing Denied Sept. 12, 1995.

James T. Rowan, Oklahoma Indigent Defense System Capital Litigation Div., Norman, Phil S. Hurst, Sulphur, Trial Counsel for petitioner.

Fred Collins, District Attorney, Jack Barton, Assistant District Attorney, Ardmore, Trial Counsel for respondent.

Carol A. Walker, Lee Ann Jones Peters, Assistant Appellate Public Defenders, Norman, Appellate Counsel for petitioner.

Susan Brimer Loving, Attorney General of Oklahoma, A. Diane Blalock, Assistant Attorney General, Oklahoma City, Appellate Counsel for respondent.

OPINION

LUMPKIN, Judge.

Petitioner Gregg Francis Braun pled nolo contendere to Count I, Murder in the First Degree (21 O.S.Supp.1989, § 701.7(A or B)); Count II, Shooting with Intent to Kill (21 O.S.Supp.1987, § 652); Count III, Shooting with Intent to Kill (21 O.S.Supp.1987, § 652); Count IV, Robbery with Firearms (21 O.S.Supp.1982, § 801); and Count V, Robbery with Firearms (21 O.S.Supp.1982, § 801) in Carter County Case No. CRF-89-332. The Honorable Thomas S. Walker, District Judge, sentenced Petitioner to twenty-five (25) years on each robbery count and life on each count of Shooting with Intent to Kill. After finding the presence of three aggravating circumstances, the trial court sentenced Petitioner to death for the murder. The trial court ordered each sentence to be served consecutively. Petitioner subsequently filed a motion to withdraw his guilty plea, which the trial court denied. We affirm that denial. ¹

I.

The charges arose from the July 21, 1989, robbery of Dodson Floral shop in Ardmore. After taking money from the shop's cash register and money from customer Mary Manning's purse, Appellant calmly herded Ms. Manning and shop employees Jo Ann Beane and Gwendolyn Miller into a room in the back of the shop, ordered them to lie on the floor, then shot each woman in the head with a .25 caliber pistol. Although temporarily blinded and made deaf by the shot, Ms. Beane managed to crawl to the telephone, pull it off the counter, and notify authorities by shouting into the telephone after giving them what she thought would be time to answer the call. Ms. Beane and Ms. Manning survived; Ms. Miller did not.

In addition to an eventual eyewitness identification from a photographic lineup, authorities found shell casings in the flower shop; a firearms expert later determined the casings were fired from the same pistol Petitioner had when he was apprehended in New Mexico. Braun's fingerprint was also found on a receipt from Ms. Manning's purse. When Appellant was apprehended in New Mexico, he told authorities of the Ardmore homicide, as well as homicides in Kansas and Texas. When he was asked how he could shoot someone in the back of the head like he did, he chuckled and said "It wasn't as good as shooting craps in Vegas, but it was all right."

Other evidence produced at Petitioner's sentencing hearing showed the Ardmore murder was one in a series of murders across four states. Petitioner started in Garden City, Kansas, where he killed two convenience store clerks after robberies. He then drove to Pampa, Texas, where he killed a man in a photograph development store. The murder in Ardmore followed. The last one was in New Mexico, where he again killed a convenience store clerk. As of the date of his Oklahoma plea, he had received a life sentence (in addition to thirteen (13) years for another crime) in New Mexico; and four consecutive life sentences (in addition to two 15-year terms) in Kansas. Those victims were also shot by a .25 caliber pistol, and casings recovered from the scenes were fired from the pistol Petitioner had in his possession when he was arrested. There was no evidence indicating the disposition of any crimes in Texas.

Based on the evidence presented during the sentencing hearing, the court found the existence of three aggravating circumstances: that Petitioner knowingly created great risk of death to more than one person (21 O.S.1981, § 701.12(2)); the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution (21 O.S.1981, § 701.12(5)); and the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society (21 O.S.1981, § 701.12(7)). The court did not find a fourth aggravating circumstance alleged: that Petitioner was previously convicted of felony involving use of threat or violence to person (21 O.S.1981, § 701.12(1)).

II.

For his first proposition, Petitioner contends he was denied the assistance of counsel in the hearing on his motion to withdraw his nolo contendere plea to the charge of murder. ² To fully understand this proposition, some background is necessary.

James T. Rowan of the capital defense litigation team was appointed to represent Petitioner. Petitioner also had local counsel, Phil Hurst. Counsel filed several motions. Pursuant to a local court rule, the trial court ordered counsel to submit a brief in support of each motion, in addition to the motion itself. Although counsel filed a memorandum brief in support of a motion for change of venue, the record does not reflect an actual motion for change of venue was filed; nor does it indicate affidavits by county residents were filed, as required by 22 O.S.1991, § 561. The trial court ordered stricken the motions not supported by brief; apparently (though never specifically stated), the brief not supported by motion for change of venue was stricken at the same time.

After the plea, Mr. Rowan signed and filed on Petitioner's behalf a "Motion to Withdraw Nolo Contendere Plea and Have Attorney Appointed to Represent Him." The motion alleged the plea was involuntary. New counsel was requested "in order to allow the Defendant full latitude in exploring any grounds he may have to in support of his motion to withdraw his Nolo Contendere plea."

At the September 21 hearing, Mr. Rowan was present, but not as Petitioner's counsel. According to the court, the Indigent Defense System had made arrangements for another attorney to represent Petitioner at the hearing; however, that attorney was not present, and the record is otherwise silent. Petitioner then elected to proceed pro se. He now claims the record was insufficient to show his decision to proceed pro se was voluntarily or knowingly made. We disagree.

A waiver of counsel is valid only if it is done knowingly and voluntarily. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). A record of the knowing and voluntary waiver is mandatory, and absent a sufficient record, waiver will not be found. Lineberry v. State, 668 P.2d 1144, 1145-46 (Okl.Cr.1983). We have held repeatedly that the record must show the trial court advised the defendant of the dangers and disadvantages of self-representation to establish a record sufficient to support valid waiver of counsel. See Stevenson v. State, 702 P.2d 371, 374-75 (Okl.Cr.1985); Dunnum v. State, 646 P.2d 613, 614 (Okl.Cr.1982); Johnson v. State, 556 P.2d 1285, 1292-93 (Okl.Cr.1976). The trial court must explain to the defendant the disadvantages of a waiver, including a lack of knowledge and skill as to rules of evidence, procedure and criminal law. Anything less than a record which shows that the defendant rejected the offer of counsel with knowledge and understanding of the perils of self-representation is not waiver. Swanegan v. State, 743 P.2d 131, 132 (Okl.Cr.1987).

In Swanegan, we said that before an accused may represent himself or herself, the trial court is required to determine whether the accused has the capacity to make a valid waiver of right to counsel. The court must then examine the defendant and determine whether the waiver is voluntary, knowing and intelligent. In doing this, the trial judge must clearly explain to the defendant the inherent disadvantages in such a waiver. Id.; see also Coleman v. State, 617 P.2d 243, 245-46 (Okl.Cr.1980).

Whether there has been a valid waiver of right to counsel is to be determined from the total circumstances of the individual case including background, experience and conduct of the accused. United States v. Warledo, 557 F.2d 721 (10th Cir.1977). Further, where a defendant elects self-representation, he may not later be heard to complain that he was denied effective assistance of counsel. Green v. State, 759 P.2d 219, 221 (Okl.Cr.1988), citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and Johnson, 556 P.2d at 1297.

An examination of the record before this Court shows the trial court began with the observation Petitioner had the right to represent himself, adding a caveat the court must be satisfied Petitioner understood what he was doing and was not coerced, pressured or threatened into doing so. He then asked Petitioner if he wanted to represent himself. Petitioner responded:

Well, at this hearing because the lawyer that was appointed to represent me--I haven't heard from him. I haven't met him. He didn't show up today, and I don't want to be brought back here again and go through all this again, so I'm ready to represent myself at this hearing today.

(WD Tr. 4). Petitioner then reaffirmed he knew another attorney had been appointed for him, but that attorney had not contacted him.

So today when I showed up, I assumed he would be here; and he's not. So I'm--I don't even want to deal with the guy, and I'm prepared to represent myself at this hearing.

(WD Tr. 5). The court then said:

If you want, I will entertain your request to reset the hearing whenever this lawyer, whether it's Mr. Payne or somebody else, can be here. If you want to represent yourself as I told you earlier, I cannot deny you that as long as I am convinced that you know what you're doing, and some prosecution person didn't give--force you to do...